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HomeMy WebLinkAbout04-01-2014 SS1 Status of Implementation of Existing Regs of Newsracks in City Right of Way FROM: Daryl Russell Grigsby, Public Works Director Prepared By: Hal Hannula, Supervising Civil Engineer SUBJECT: STATUS OF IMPLEMENTATION OF EXISTING NEWSRACK REGULATIONS RECOMMENDATION 1. Receive a report on the progress of the Newsrack Program 2. Provide feedback for program continuation and/or enhancement DISCUSSION Background In the past, staff received direction to pursue measures to enhance streetscape, maintain infrastructure and improve the aesthetics within the Downtown. One of the items of concern was the condition, lack of maintenance, and general aesthetic of many of the newsracks. In February of 2011, staff came to the City Council with the consideration of the current and proposed regulations governing the maintenance of newsracks in the public right-of-way. The report included a fully enforceable ordinance that would have consolidated distribution in uniform racks in the Downtown. The Council was persuaded not to pursue ordinance changes and that the provisions of the current ordinance should be enforced as a first step. Staff took additional steps to notify vendors of permitting requirements, work with Downtown business representatives to identify problem racks, and request remediation of those racks by vendors. Now that the program has been implemented, there has been feedback from observers and stakeholders that the permit program developed to date has not yielded the desired results. In response to this concern, Public Works staff has recently initiated a more focused pilot program to achieve compliance. More information about past and current efforts is provided below under the subsection Focused Pilot Program. In order to help the City Council consider the options related to the regulation of newsracks it is important to understand the legal consideration at play. The legal landscape surrounding newsrack regulation has not changed significantly since the Council last considered the issue of modified regulations to require distribution via uniform City owned newsracks. Distribution of publications through newsracks is a well-established, protected right under the First Amendment of the United State Constitution and the California Constitution. Accordingly, the government's right to restrict free speech “‘... is very limited: the government may enforce reasonable time, place, and manner regulations as long as the restrictions “are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.’” (Gonzales v. Superior Court, 180 Cal.App.3d. 1116) In 2000, the Tribune sued the City of Paso Robles alleging that Paso’s then newly enacted newsrack regulations restricting the number and location of the racks throughout public areas violated the newspaper’s rights under the State and Federal Constitutions (a copy of the case is available in the Meeting Date Item Number April 1, 2014 SS1 SS1 - 1 Status of Implementation of the Existing Newsrack Regulations Page 2 Council reading file). The trial court held that that the City’s ordinance violated the First Amendment to the United States Constitution because it was “…not narrowly-tailored to address specific safety, economic or aesthetic concerns.” The California Court of Appeal, in an unpublished decision, affirmed the trial court’s ruling “because City made no attempt to ascertain whether the restrictions were related to its purported concerns, and did not consider whether the restrictions were narrowly tailored to achieve the goals set forth...” The Court of Appeal decision noted that “…staff did not seek input from citizens or appellants about the significance or propriety of the goals stated, whether the new, additional restrictions are reasonably calculated to achieve significant government goals, or whether more narrowly drawn, less restrictive provisions might achieve such goals, as required by First Amendment jurisprudence.” While the Paso case was not binding authority, it did provide some valuable guidance as to how local courts might evaluate regulation in this arena. Thus, when the City last undertook evaluation of newsrack regulation, staff from Public Works and the City Attorney’s Office engaged in significant stakeholder outreach in order to define City objectives and obtain and consider feedback from vendors and representatives of Downtown business and tourism interests regarding the scope and nature of regulation appropriate to achieve City objectives. More recently, Public Works staff has again reached out to stakeholders in an effort to enhance compliance with existing regulation and understand what, if any, additional regulations may be necessary to achieve the City’s objective of maintaining organized, operational, safe and clean and well-maintained newsracks in the Downtown. Notwithstanding the outcome in the Paso case, the Court of Appeal acknowledged, and other state and federal cases make clear, that a city may adopt and enforce ordinances governing the manner, appearance, and location of newsrack distribution. There are numerous cases, at both state and federal levels, holding that content-neutral ordinances adopted in reliance on records demonstrating adverse impacts on governmental interests and regulations carefully crafted to address those adverse impacts are permissible. Thus, it is clear that the City can regulate in this area, generally, and may apply special, more restrictive requirements to its Downtown in the interest of preserving and enhancing aesthetics and protecting public safety in its rights of way. An article published by the First Amendment Center outlining the evolution of the case law in this arena in more detail is attached to this report as Attachment 1. Major Topic 1. Downtown Newsrack Program Implementation The Newsrack Program was an entirely new program that started shortly after Council direction in early 2011. The several program steps including inspections continued through 2012 and 2013. A more significant and concentrated effort was commenced at the beginning of this year. Although an ordinance was in place, encroachment permits were initially not required and rack installations were not subject to specific conditions. Although vendor racks would be included for permitted locations citywide, the primary focus was and continues to be related to aesthetics and Downtown aesthetics. The current newsrack regulations require that news vendors obtain an encroachment permit within ten days of placing racks within the public right-of-way. At the time of our last presentation to the Council, no vendors operating with the public right-of-way had an active permit. SS1 - 2 Status of Implementation of the Existing Newsrack Regulations Page 3 Step One: Identify vendors and issue permits. The first order of business required that all vendors be identified. Staff established a list of companies and contacts in charge of the racks. Notices were sent out and all news agencies ultimately completed encroachment permit applications, provided rack locations lists, paid the appropriate fees, provided liability insurance and signed permits. The program resulted in twelve encroachment permits for vendors. The twelve vendors are responsible for 119 racks in the Downtown area. Step Two: Evaluate regulations and establish permit conditions. One of the initial Council and community concerns regarded aesthetics and overall rack appearance and maintenance. These provisions are not specifically articulated in the current Ordinance. The current provisions for any encroachment permit require that the permittee comply with City Engineering Standards and Guidelines. While the Ordinance does not specify aesthetic standards, the newsrack permit includes specific conditions related to aesthetic requirements. The permit condition language includes in part, “Racks shall be maintained per MC Chapter 12.04, City standards, and guidelines….. Racks shall be reasonably free of graffiti, dirt, grease, rust, damage, peeling/faded paint, & deteriorated plastic/glass.” A program enhancement, for Council consideration, could be specification of aesthetic standards in the Ordinance itself, which would broaden the array of enforcement options to achieve compliance to include all options otherwise available for Municipal Code violations. Step Three: Follow-up inspections. We have seen some progress in the reduction of the number of rack violations since the start of the program. Initial inspections were conducted by City staff. The Downtown Association (DA) agreed to use their private security staff to complete follow-up inspections. Standard inspection forms were created to cover a group of racks (rack cluster). Our inspection protocol included the identification of the specific rack location, rack vendors in each location, and a checklist of violations or rack approval. 1. The initial inspection indicated that 37 newsracks had graffiti. 2. The following inspection indicated that only 14 newsracks had graffiti violations. 3. The next blanket inspection showed that two-thirds of the outstanding rack violations were related to rack cleaning. 4. The Downtown Association and City inspection programs were subsequently temporarily suspended as we strategized on our next steps. 2. Focused Pilot Program In January, staff began a focused pilot program for a smaller subset of the Downtown racks. Our goal was to provide specific tracking on a more manageable number of racks, review rack violations, vendor responses, and to evaluate resource requirements. The purpose of the pilot was to determine if reduced time lag between 1st inspection-vendor contact-reinspection would result in increased program effectiveness. This focused group of racks included all racks on both sides of Higuera between Osos Street and Broad Street. The pilot was approximately 35 of the 150 newsracks in the Downtown core. Staff provided a specific inspection checklist with photos of rack clusters for use by the DA for their initial inspection. The DA security staff completed the first round of inspections. City staff then notified vendors of any problem racks. The City received responses back from many of the vendors and City staff completed two follow-up inspections of the racks that were identified as being in violation of the permit. Some racks were ultimately removed, changed out with newer racks, or received the appropriate maintenance. Overall, the response from the vendors was productive and the general aesthetic regarding the racks in question was improved. SS1 - 3 Status of Implementation of the Existing Newsrack Regulations Page 4 It should be noted that even with this improvement, there are still instances of public dissatisfaction with the appearance of Downtown newsracks. Another purpose of the pilot program was to determine if an enhanced inspection program could be implemented with existing staff. While the actual additional staff for a full program has not been identified, it is staff’s opinion that a higher level of vendor contact, re-inspection, and follow-up could require additional resources. However, more analysis of actual resources is required and it is not assumed that additional City staff is the only solution. Staff will review alternatives that include assistance from other organizations, maximizing existing resources, utilizing a partnership with the Downtown Association, and other options. 3. Stakeholder Meeting In March, staff invited the vendors and DA Director to participate in a roundtable discussion regarding the newsrack program, history, initial inspection program, pilot inspection program, and upcoming City Council study session. The vendors are still unanimous in their support of continuing with the current ordinance and permit provisions. They expect that they should be able to comply with their permit conditions within a reasonable time (10 days) upon notification of any violations. They also discussed some of their internal policies and procedures regarding rack maintenance. It was suggested, and the group concurred, that the permit conditions could be updated to require the vendors to provide contact information to the DA and to the immediately adjacent businesses for all Downtown rack locations. This would facilitate timely feedback from those closest to the newsracks, Downtown businesses, with the vendors responsible for their appearance. The vendors in attendance supported the existing annual permitting and fee requirements. They also generally supported additional enforcement efforts that might include administrative citations leading to rack removals for non-responsive vendors. The group was split on the idea of increasing rack fees to capture an additional per rack fee to cover inspections. NEXT STEPS Proposed Staff Actions 1. Update all permits with any revised or new permit condition language, and verify that all permits are current for fee payment and insurance requirements. Currently the proposed additional condition language would require each vendor to provide up-to-date contact information both to the property fronting the newsrack, and to the Executive Director of the Downtown Association. A significant advantage of this approach is that it provides a more direct feedback loop and does not require a City staff structure to inspect, notify, and re- inspect. It provides, instead, the opportunity for the rack vendor to work as a Good Neighbor, comply with the permit, and meet accepted aesthetic standards. 2. Continue with current inspection and follow-up protocols. ALTERNATIVES 1. Return to Council with Ordinance changes to include: a. Specific language regarding aesthetic standards, and b. Clear authority for Administrative Citations for non-compliance, and c. Specific (appropriate) citation amounts. SS1 - 4 Status of Implementation of the Existing Newsrack Regulations Page 5 2. Return to Council with a proposal to align permit fees such that fees are consistent with the actual number of racks covered by each encroachment permit. Currently the encroachment permit amount is the same despite the actual number of racks covered under the permit. Therefore, currently, a vendor with one rack pays the same fee as a vendor with several. 3. Return to Council with detailed information of staff required to implement a more assertive program and outline the fees required to fund that program. FISCAL IMPACT There is no fiscal impact since this is a study session item intended to update Council on newsrack compliance efforts. We will continue to issue an updated permit annually and collect our minimum encroachment permit fee. ATTACHMENTS 1. First Amendment Center – Newsracks & newspaper street sales 2. Sample Encroachment Permit 3. Newsrack Program Statistics from Previous Inspections 4. Higuera Pilot Program Statistics AVAILABLE FOR REVIEW IN THE COUNCIL OFFICE San Luis Obispo Tribune v. City of El Paso de Robles California Court of Appeal case t:\council agenda reports\2014\2014-04-01\status of implementation of existing newsrack regulations (grigsby-dietrick)\council agenda report.docx SS1 - 5 Attachment 1 SS1 - 6 Attachment 1 SS1 - 7 Attachment 1 SS1 - 8 SS1 - 9 SS1 - 10 SS1 - 11 Page intentionally left blank. SS1 - 12